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Minnesota Law Review

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public opinion, privacy, proportionality, Fourth Amendment, search and seizure


Fourth Amendment | Law | Privacy Law


In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this tendency, the book constructs a Fourth Amendment frame- work-meant to apply to every type of government investigative technique, technologically enhanced or not-that is both more faithful to precedent and more attentive to the empirical reality of how the techniques affect individual interests and meet law enforcement needs. The principal component of this framework is the idea that the justification for a government search or seizure ought to be roughly proportionate to the invasiveness of the search or seizure. This proportionality principle is a simple but powerful concept found throughout American jurisprudence, including a number of the Supreme Court's Fourth Amendment cases.



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